Criminal Practice  – Lane Control – DWI – Second-Degree Murder – Malice

G.S. § 20-146(d)(1) requires not only that a motorist drive his vehicle “as nearly as practicable entirely within a single lane,” but also that a motorist refrain from changing lanes unless he “has first ascertained that such movement can be made with safety.” Even though a tow truck partially obstructed defendant’s lane of travel, defendant violated the statute by veering off the road and trying to pass the tow truck on the shoulder, without first ascertaining that this maneuver could be done safely. 

We reverse defendant’s convictions for driving while impaired and felony7 death by motor vehicle. We find no error in defendant’s convictions for second-degree murder and failure to maintain lane control.

Facts

On an icy night in Orange County, the victim was involved in a single-vehicle accident. A tow truck stopped partially in the righthand lane in front of the victim’s pickup truck. The victim was standing on the shoulder of the road, with the two truck between himself and traffic.

Defendant approached the scene, veered off the road to avoid the tow truck, struck the victim, and kept going. The victim was thrown into the road, where another driver, Austin Phillips, ran over him.

Several hours later, defendant was arrested at his home in Greensboro.

DWI

Around five hours after the collision, a state trooper formed the opinion that defendant was impaired. The trooper formed his opinion without asking defendant whether he had ingested any impairing substances and without asking defendant to perform any field tests for sobriety.

Without more, this cannot suffice as substantial evidence of appreciable impairment at the time of the collision. There must be some evidence closer to that time which more than circumstantially implies that defendant was impaired. Therefore, the trial court erred in denying defendant’s motion to dismiss the charges of DWI and felony death by motor vehicle, of which DWI is a necessary element.

Lane Control

The state presented substantial evidence that defendant violated G.S. § 20-146(d)(1) by veering to the right of a tow truck and attempting to pass it on the shoulder of the road. “Whenever any street has been divided into two or more clearly marked lanes for traffic … [a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” § 20-146(d)(1).

Defendant argues that because the evidence showed that the tow truck partially obstructed the right lane in which he was traveling, it was not “practicable” for him to drive entirely within that lane of traffic. Defendant interprets the statute such that impracticability is an absolute defense.

However, § 20-146(d)(1) contains two disjunctive mandates. A motorist must drive his vehicle “as nearly as practicable entirely within a single lane.” A motorist must also refrain from changing lanes unless he “has first ascertained that such movement can be made with safety.”

There was substantial evidence that defendant did not ascertain that veering onto the shoulder and passing the tow truck on its right side could be done with safety. Viewing the evidence in a light most favorable to the state, defendant was driving late at night at a speed unreasonably fast for the icy conditions. Despite the fact that the tow truck obstructed his view of some of the shoulder, defendant decided to pass the vehicle on the shoulder. A motorist traveling 40 seconds behind defendant ascertained that passing the tow truck on the shoulder-side could not be done with safety.

From this evidence a reasonable juror could find that defendant did not make determine that his maneuver could be done safely before conducting the maneuver.

Malice

Viewing the evidence in a light most favorable to the state, defendant was driving while his license was revoked both for prior DWI and non-DWI offenses. He failed to insure his car.

Defendant was driving at a speed that was irresponsible late at night on icy roads. He became aware that a tow truck was partially within his current lane of traffic. Rather than switching to the left lane as Phillips did, defendant veered his vehicle to the shoulder of the interstate. In so doing, he was unaware of what might be on the portion of the shoulder obstructed from his view by the tow truck.

Defendant lost control of his vehicle and hit the guard rail, the tow truck, and the victim. He stopped briefly. The collision was so severe that it ripped the front bumper from his car, cracked the windshield, broke the headlights, and deployed the airbags. Despite the severity of the collision, defendant drove away and washed his car, suggesting he was aware that he had hit someone and needed to remove evidence from his vehicle. In his interactions with law enforcement officers at his home, defendant casually downplayed the severity of the collision despite being informed that he had killed someone.

The state published a redacted version of defendant’s extensive driving record to the jury. The jury also heard testimony from an officer who had arrested defendant on suspicion of DWI on a prior occasion. Defendant had boasted to this officer that he “[knew] how to work [the system]” and avoid the consequences of his conduct behind the wheel. Furthermore, defendant’s driving record revealed that he had been involved in five car accidents in the last 20 years, two of which caused personal injury. 

From this evidence, the jury could infer that defendant was well aware of the dangers to human life posed by his pattern of behavior behind the wheel, and on this occasion once again engaged in dangerous driving with indifference to its consequences. Therefore, substantial evidence supported the element of malice. The trial court did not err in submitting the second-degree murder charge to the jury.

Defense of Accident

Even if the trial court erred by declining to instruct the jury on the defense of accident, since the court submitted the lesser-included offenses of involuntary manslaughter and misdemeanor death by vehicle—noting that these offenses involved unintentional killings—and since the jury nevertheless convicted defendant of second-degree murder, which requires a mens rea of malice, any error in failing to give an instruction on accident was harmless.

Reversed in part; no error in part.

State v. Nazzal (Lawyers Weekly No. 011-064-20, 21 pp.) (John Arrowood, J.) Appealed from Orange County Superior Court (Rebecca Holt, J.) Kathryne Hathcock for the state; M. Gordon Widenhouse for defendant. N.C. App.